Clinicians and researchers commonly divide drug and alcohol consumption into three levels or stages of use: use, abuse, and dependence. While the use of drugs and alcohol does not generally rise to the level of an impairment that constitutes a disability, abuse and dependence do. Drug and alcohol abuse is characterized by intensified, regular, sporadically heavy, or “binge” use, and dependence is characterized by compulsive or addictive use.

Drug and alcohol abuse and dependence are classified as treatable illnesses by both standard diagnostic medical manuals, the Diagnostic and Statistical Manual IV (DSM-IV) and the International Statistical Classification of Diseases, Injuries, and Causes of Death (ICD-10). These manuals also provide criteria for diagnos­ing drug and alcohol abuse and dependence that focus on psychological, behav­ioral, and cognitive symptoms. The impact of drug and alcohol use on social and occupational functioning is an important factor in evaluating the severity of an individual’s condition. Many individuals with drug and alcohol problems can function in their jobs long after drug and alcohol use has begun to take its toll on family and social functioning. The resultant lost productivity and wages plus injury-related expenses cost the American workforce an estimated 100 billion dollars per year.

Many employers do not realize that the Ameri­cans with Disabilities Act (ADA) protects individuals with drug and alcohol problems against discrimination in employment. Con­fusion exists because the ADA includes both employment protections and sanctions re­garding individuals with current drug prob­lems. 

The ADA protects people with past drug or alcohol problems and persons with current al­cohol problems who are able to perform their jobs. By contrast, the ADA specifically ex­cludes from the definitions of “individual with a disability” any person currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use. This exclu­sion applies to individuals using illicit drugs as well as those using prescription medica­tions unlawfully. Individuals who use drugs under the supervision of a licensed health care professional, however, are not using drugs illegally and are therefore protected against discrimination. In recent years there have been gains in creating drugs to assist individu­als with recovery from drug addiction, and consequently it is more likely that former drug users will enter the workforce with specialized medication to assist with their maintenance of sobriety.

Similarly, the ADA protects individuals who are participating in a supervised drug rehabili­tation program, have completed a treatment program, or have been rehabilitated and are no longer using drugs illegally.

When individuals are erroneously perceived as abusing drugs illegally, they are entitled to ADA protections. Because of societal attitudes about drug abuse, many individuals who have had past drug problems are wrongly perceived as being drug dependent even after they have been fully rehabilitated. Likewise, individuals who participate in methadone maintenance programs are also often per­ceived as drug dependent, even though meth­adone is a lawfully prescribed medication and individuals who participate in a methadone maintenance program are able to do every task -- even safety-related tasks -- that a person who is not receiving such treatment can do.

Workplace drug testing programs also create a pool of individuals who may be erroneously perceived as being drug dependent. Invari­ably, drug tests inaccurately identify some individuals as drug users, whether because the drug test is performed incorrectly, substances in an individual’s system are incorrectly iden­tified as a drug, prescription medications are incorrectly identified as illicit drugs, or some other reason. The ADA prohibits discrimina­tion against individuals who are erroneously regarded as being addicted to controlled substances because of a false positive drug test. However, the ADA does not protect an individual who is erroneously perceived as recreationally using illegal drugs on an oc­casional basis, because in those circumstances the employer is not “regarding” the individual as having a substantially limiting impairment. This is a sensitive and complex area and many employers utilize drug testing policies that set forth specific steps for handling positive drug findings.

Individuals with current alcohol impairments that substantially limit one or more major life activities are protected against discrimination like any other individual with a disability. Alcohol is not considered a “drug" under the ADA, and, therefore, the individuals who current abuse alcohol are not excluded from the ADA’s protection. Individuals with cur­rent alcohol-related disabilities, like any other individual with a current disability, must be able to perform the essential functions of the job. In addition, the ADA specifically permits an employer to hold employees who abuse alcohol to the same performance and conduct standards applicable to all employees, even if that employee's problems are related to alco­hol abuse.

Current illegal drug use excluded from ADA coverage does not mean drug use occurring specifically on the day of or within a matter of weeks before the employment action in ques­tion. To determine whether such drug use is current, the employer must focus upon wheth­er the individual has used drugs close enough to the time of the employment action to indi­cate that there is a real and on-going problem. If an individual tests positive on a test for illegal drugs, that person will be considered a current drug user (provided that the test cor­rectly indicates the illegal use of a controlled substance).

Casual drug use is not a disability under the ADA, regardless of when it occurred. Only individuals who are addicted, have a history of addiction, or are regarded as being addicted have an impairment under the law. Therefore, denying employment to job applicants solely because of a history of casual drug use would not raise ADA concerns. On the other hand, policies that screen out applicants because of a history of addiction or treatment for addic­tion must be carefully scrutinized to ensure that the policies are job-related and consistent with business necessity. If safety is asserted as a justification for such a policy, then the em­ployer must be able to show that individuals excluded because of a history of drug addic­tion or treatment would pose a direct threat -- i.e., a significant risk of substantial harm -- to the health or safety of others or, perhaps, to themselves as well, that cannot be eliminated or reduced by reasonable accommodation.  Because the ADA protects individuals who are participating in a rehabilitation program and those who have been rehabilitated (as long as they are not still using drugs illegally), em­ployers should be careful about reaching back in time and taking adverse actions against individuals for drug use that occurred prior to treatment.

The permissible scope and timing of inquiries and tests relating to drug and alcohol use will depend on the specific information sought. An employer may ask applicants and em­ployees about the current illegal use of drugs before or after extending a job offer and dur­ing employment without violating the ADA, because an individual who currently uses illegal drugs is not protected under the ADA. The ADA also specifically states that tests for the current illegal use of controlled substances are not considered medical examinations.

An employer also may ask about past illegal drug use at the pre-offer stage so long as the question is not likely to elicit information about a disability. A question such as “Have you ever used illegal drugs?” or “When did you last use illegal drugs?” would be accept­able. Questions about addiction would not be permissible at the pre-offer stage, but could be asked either after a job offer has been extended or during employment if the inquiry is job-related and consistent with business necessity.

Generally, questions about lawful drug use are not allowed pre-offer because they are likely to elicit information about disability. However, if a person tests positive for illegal drug use, an employer could ask about lawful drug use as a possible explanation for the positive drug test.

When an employer obtains medical informa­tion at the pre-offer stage, it must be careful not to use the information in a way that would violate the ADA. To avoid the possibility of this type of allegation, many employers choose to conduct drug testing after a conditional of­fer of employment has been made. In all cases where an employer obtains medical informa­tion from an inquiry or exam, the medical information must be collected and maintained on separate forms and in separate files and treated as a confidential medical record.

An employer could ask about drinking hab­its at the pre-offer stage, such as whether a person drinks or has ever been arrested for driving while intoxicated, so long as the ques­tion is not likely to elicit information about alcoholism. In contrast, questions about how much someone drinks or whether they have ever been in an alcohol rehabilitation program are not acceptable because they are likely to garner information about alcoholism. Alcohol tests may not be given pre-offer because they are considered to be medical tests. Inquiries relating to alcoholism or alcohol tests could be conducted post-offer, or at the employment stage if the inquiry or test is job-related and consistent with business necessity.

The ADA permits employers to take reason­able steps to ensure that an individual is no longer illegally using drugs. Employers are permitted to conduct drug tests and to obtain information from treatment programs in order to monitor drug use. If an employer has an employee assistance program (EAP), the EAP may be the best entity to conduct the follow-up.

While the ADA does not impose many restric­tions on drug testing, employers are required to use accurate test procedures and to comply with any federal, state, or local law that regu­lates drug testing.

An employer may require random alcohol testing of an employee who has undergone rehabilitation, even without evidence that the employee has recently been or is presently under the influence of alcohol, if it is reason­able to believe that the employee would pose a direct threat in the absence of such testing. For example, random alcohol testing may be unwarranted in the case of a recently rehabili­tated clerical employee but appropriate in the case of a health care employee who provides direct patient care.

When seeking rehabilitation information from a drug or alcohol treatment program, employ­ers should be aware that federal regulations govern the release of drug and alcohol patient information by virtually all treatment pro­grams. These regulations, in order to protect the confidentiality of individuals with drug and alcohol problems, require the execution of a detailed consent form before employers can receive treatment information, and they place strict limitations on the employer’s use, main­tenance and re-disclosure of that treatment information.

Accommodations for individuals in recovery from a drug or alcohol problem will vary depending upon the requirements of their jobs and their length of time in recovery. For example, individuals who have recently completed a rehabilitaion program may need to participate in a structered, outpatient continuing care program on a regualr basis. Others who have been sober for a long time may participate in self-help groups, such as Alcoholics Anonymous, in order to prevent relapse. Involvement in such continuing care may require some accomodation.

The ADA permits employers to comply with other federal laws and regulations that relate to drug and alcohol use. These federal stan­dards include the Drug Free Workplace Act and standards established by the Department of Transportation, Department of Defense, and the Nuclear Regulatory Commission relating to testing safety-sensitive employees for drug use and, in some cases, alcohol use. The stan­dards established by these other federal laws and rules are consistent with the ADA and, for the most part do not impose additional restric­tions on the rights of individuals in safety-related jobs. The drug testing regulations, in particular, cover a fairly narrow set of employees whose jobs directly affect safety. They require em­ployees to comply with restrictions on off-duty drug and alcohol use and prohibit individu­als who violate drug or alcohol rules from holding safety-sensitive jobs. The regulations give employers the right to determine when individuals who have tested positive for drug or alcohol may return to work in the safety-related position. Apart from these more stringent standards, the ADA does not permit employers to treat individuals with past drug or alcohol impair­ments who hold safety-related jobs any differ­ently from other employees.